Hernandez v. Ballam, et al.

Filing 38

ORDER Regarding Plaintiff's Objection to March 19, 2018 Order, signed by Magistrate Judge Barbara A. McAuliffe on 4/6/18. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ANTHONY CEASAR HERNANDEZ, 10 11 12 Case No.: 1:17-cv-00468-BAM (PC) ORDER REGARDING PLAINTIFF’S OBJECTION TO MARCH 19, 2018 ORDER Plaintiff, v. [ECF No. 37] BALLAM, et al., 13 Defendants. 14 15 16 I. Introduction 17 Plaintiff Anthony Ceasar Hernandez is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s 19 second amended complaint against Defendant Perez and Defendant Duran for excessive force in 20 violation of the Eighth Amendment, and against Defendant Ballam for the failure to intervene in 21 violation of the Eighth Amendment. (ECF No. 15.) Service of the second amended complaint on 22 those Defendants remains underway. (ECF Nos. 18, 21.) 23 On March 19, 2018, the Court denied Plaintiff’s motion for leave to file a third amended 24 complaint. (ECF No. 32.) Currently before the Court is Plaintiff’s objection to that order, filed on 25 April 5, 2018. (ECF No. 37.) 26 II. Objections 27 In his objections, Plaintiff discusses that the Court noted in its order that Plaintiff 28 requested leave to file a second amended complaint, but it appeared that he intended to file a 1 1 third amended complaint based on the docket. Plaintiff asserts that this is inaccurate, because he 2 has only filed an original and amended complaint in this action. 3 The Court informs Plaintiff that his original complaint was filed in this action on 4 November 22, 2016, (ECF No. 1), his first amended complaint was filed in this action on August 5 30, 2017, (ECF No. 9), and this action now proceeds on his second amended complaint, filed on 6 December 4, 2017, (ECF No. 15). Therefore, Plaintiff has filed an original complaint and has 7 amended it twice in this action to date. 8 III. Request to Amend 9 Plaintiff also asserts that he failed to allege in what capacity that he seeks to sue each 10 Defendant (official or individual), and he failed to include the amount of damages in each 11 category of damages that he seeks. Therefore, he again requests leave to file an amended 12 complaint. 13 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 14 pleading once as a matter of course at any time before a responsive pleading is served. 15 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 16 party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) 17 is very liberal and leave to amend shall be freely given when justice so requires.” 18 AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation and 19 quotation omitted). However, courts “need not grant leave to amend where the amendment: (1) 20 prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in 21 litigation; or (4) is futile.” Id. 22 To the extent Plaintiff is seeking leave to amend his complaint to add allegations to sue 23 Defendants in their official capacities, such a request is futile. Plaintiff may not sue these prison 24 officials in their official capacity. “The Eleventh Amendment bars suits for money damages in 25 federal court against a state, its agencies, and state officials acting in their official capacities.” 26 Aholelel v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). 27 Plaintiff’s current prayer for relief in his operative second amended complaint states that 28 he seeks “$100,000.00 U.S. dollars.” (ECF No. 15, at 6.) Plaintiff states that he did not include 2 1 nominal, compensatory or punitive damages, or the amount in each category, and he seeks leave 2 to do so now. 3 In considering the relevant factors, the Court finds no evidence of prejudice, bad faith, 4 undue delay in litigation, or futility in this request. Plaintiff states that he did not previously 5 include the forms of damages that he seeks in this action due to his pro se status and lack of legal 6 expertise. It appears he has further researched the matter and has promptly sought leave to 7 amend. The Court finds this sufficient to show diligence and good cause under the 8 circumstances. Moreover, although service of process is underway, the case is in the early stages, 9 and the Court does not find there would be undue delay should Plaintiff promptly file a proposed 10 third amended complaint for the Court’s review. He will be required to do so within thirty (30) 11 days. Accordingly, Plaintiff’s motion for leave to amend shall be granted. 12 Plaintiff also states that he receives no assistance from counsel and that he should have 13 been counseled by the judicial officer. Plaintiff is informed that the Court cannot provide legal 14 advice to litigants, even when they are pro se litigants who lack legal training or understanding. 15 The Court may provide basic explanations of rules, and generally attempts to provide clear, 16 concise rulings to the parties in plain language, but it cannot give plaintiff, or any party, advice 17 on strategies for prosecuting his claim. 18 IV. Conclusion and Order 19 As discussed, Plaintiff shall be granted leave to file a third amended complaint, within 20 thirty (30) days, to amend his prayer. 21 Plaintiff’s third amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state 22 what the named Defendants did that led to the deprivation of Plaintiff’s constitutional rights, 23 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Although accepted as true, the “[f]actual 24 allegations must be [sufficient] to raise a right to relief above the speculative level. . . .” Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). 26 Plaintiff has been granted leave to amend for the sole purpose of amending his prayer 27 for relief. He may not change the nature of this suit by adding new, unrelated claims in his 28 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 3 1 complaints). 2 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 3 Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s 4 third amended complaint must be “complete in itself without reference to the prior or superseded 5 pleading.” Local Rule 220. 6 Based on the foregoing, it is HEREBY ORDERED as follows: 7 1. Plaintiff’s request for leave to amend his complaint to amend his prayer for relief 8 is granted; 9 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 10 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 11 third amended complaint as discussed in this order; 12 4. Plaintiff shall clearly identify the amended complaint as “Third Amended 13 Complaint” and refer to the case number; and 14 5. Plaintiff may not add any new allegations or claims or defendants to this action. 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara April 6, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4

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